The secrecy system

September 03, 2004

U.S. JUSTICE DEPARTMENT officials say there's no problem if a librarian or business person takes issue with one of the department's secret orders to hand over data and "tangible things" under provisions in the Patriot Act. All that person need do is take it up with the Foreign Intelligence Surveillance Court, have a hearing and get it sorted out.

The only problem with that is, no one gets into the super-secret court except government attorneys and FBI agents. Sorry.

The written rules of the intelligence court, which approves FBI requests for clandestine wiretaps and searches, were released late last month as part of an American Civil Liberties Union lawsuit over the terrorism prevention act.

People who are charged based on those searches are never permitted to see the warrant, so they cannot defend themselves in court against unreasonable snooping. Those who aren't later charged - the vast majority - never know the government was watching them or asking their booksellers and hardware store staff to report on them, or their landlords for an apartment key. Business owners aren't permitted to tell anyone that the government has asked for someone's data, which makes it hard for them to ask questions.

The surveillance court has been around for 26 years, but since enactment of the Patriot Act, which changed the court's rules, the number of clandestine surveillance and search warrants approved has jumped 70 percent. The 1,724 warrants approved last year beat the number of surveillance warrants approved by standard courts (1,442) for the first time, according to reports from the Office of the Attorney General and the Administrative Office of the U.S. Courts. In the past two years, only four warrant applications have been turned down by the secret court, an amazing rate considering the court's self-review in 2000 found that 75 of the 1,102 warrants issued that year contained errors including "misstatements and omissions of material facts." Perhaps some of those folks would have liked to challenge them.

Justice has charged 310 people with crimes "as a result of terrorism investigations" between October 2001 and May 2004, with 179 convictions, it reported in July. The department gives only a dozen or so examples, citing secrecy, but many of these examples do not sound so much like terror as regular criminal activity. Along with arrests on charges of conspiracy and threatening to destroy buildings were arrests involving child pornography and molestation, kidnapping, money laundering, credit card fraud, Internet hacking and blocking a town's 911 radio system.

The Patriot Act, a voluminous law passed in haste, needs some revision - and more debate - starting with who should be classified as a potential domestic terrorist and why so many cases all of a sudden need to be secret.

The FBI has not needed to label pedophiles, kidnappers and hackers terrorists in order to catch them in the past; it does not need to do so now.